Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rajesh Sekhri upheld a preventive detention order passed under the Jammu and Kashmir Public Safety Act, 1978. The court dismissed a habeas corpus petition challenging the legality of the detention and affirmed the authority's subjective satisfaction regarding the necessity of the detention. The court held that the detention was based on material facts that demonstrated the detainee's continued engagement in activities prejudicial to state security, even after earlier release.

In its judgement, the Court found no merit in the arguments raised by the petitioner regarding the alleged vagueness of the grounds of detention, non-communication of relevant documents, and non-compliance with procedural safeguards under the Constitution of India. The Bench observed that the grounds of detention were sufficiently detailed and had been properly communicated to the detainee in a language he understood. Accordingly, the High Court upheld the impugned detention order and dismissed the habeas corpus petition as devoid of merit.

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The petition challenged an order of detention issued under Order No. 17/DMP/PSA/24 dated 04.04.2024 by the District Magistrate, Pulwama, which led to the detention of the petitioner, Tahir Riyaz Dar, under the Jammu and Kashmir Public Safety Act, 1978. The petitioner was lodged in Central Jail, Kot Bhalwal, Jammu.

The petitioner contended that the impugned detention was illegal, primarily on the ground that the only reference in the grounds of detention was to FIR No. 46/2022, which pertained to a time when the petitioner was a juvenile. He had subsequently been released on bail after an assessment report from the Superintendent of the Observation Home. According to the petitioner, no fresh allegations had been raised against him post-release. He asserted that the grounds of detention and the police dossier were vague and did not contain any specific or material particulars.

Additionally, the petitioner raised multiple grounds of challenge:

1. That the grounds of detention were vague, non-existent, and failed to enable a prudent person to make an effective representation.

2. That the detention order suffered from non-application of mind, as the satisfaction recorded by the detaining authority was based on vague grounds.

3. That the grounds of detention were a verbatim reproduction of the police dossier.

4. That the relevant documents necessary to make a representation were not provided, thereby infringing the constitutional right under Article 22(5).

5. That the detention order was not read over to the petitioner in a language he understood, nor was a translated script furnished in Kashmiri or Urdu.

6. That the petitioner was neither informed of his right to make a representation nor provided with the opportunity to do so after the execution of the detention order.

The respondents, represented by Government Advocate Ms. Rekha Wangnoo, opposed the petition, asserting that the detention order was passed after due compliance with statutory and constitutional requirements. They stated that the preventive detention was lawful and based on credible inputs received from various agencies.

It was submitted by the respondents that the grounds of detention and all relevant documents were provided to the petitioner within the stipulated time under Section 13 of the PSA. Further, the order was executed on 06.04.2024, and the petitioner was informed of his rights, including the right to make a representation. The petitioner did make such a representation, which was rejected on 18.04.2024. The rejection was communicated to the jail authorities for delivery to the petitioner.

According to the respondents, the petitioner failed to establish that any representation had been made to the Home Department, and this absence negated the claim of procedural impropriety. The Advisory Board constituted under Section 14 of the PSA reviewed the case and opined that there was sufficient cause for the detention. Based on this recommendation, the Government confirmed the detention under Order No. Home/PB-V/884 of 2024 dated 30.04.2024.

The grounds of detention detailed post-release surveillance of the petitioner, indicating that he re-established contact with banned terrorist organizations and provided logistical support to them. He was also accused of influencing youth to join militant ranks, thereby undermining public order and state security.

The Court examined the records and arguments presented. It stated: "Subjective satisfaction of the detaining authority is not only based on the aforesaid FIR...but allegations against him is that after his release on bail in the said case, he was discreetly kept under surveillance and... he established contacts with the terrorists operating in the area."

Quoting from the grounds of detention, the Court recorded: "You have deep passion towards terrorism as such it is impossible to bring you in mainstream...you even have been trying to revive the militancy again which has been brought down to a considerable extent."

On the petitioner’s claim of vagueness, the Court stated: "The detaining authority is not obliged to provide the date and time of a detenue providing logistics to terrorists organizations or keeping the terrorists informed about the movement of the security forces."

Discussing the preventive nature of the PSA, the Court observed: "The very concept of maintenance of public order is to prevent a person from indulging in anti-national activities and not to punish him."

The Court found that Section 8(1) of the PSA empowered the government to make an order for detention to prevent acts prejudicial to the security of the State or maintenance of public order.

Regarding the representation, the Court stated: "It is only the Government who is the authority competent before whom a representation can be made by a detenue...if no representation is made to the Government within statutory period, the Government is justified to approve the detention order."

On the issue of language, the Court recorded: "Notice of detention has been given to the detenue and contents...have been read over and explained to the detenue in Urdu/Kashmiri languages, fully understood by him and signatures...have been obtained."

The Court issued a detailed judgment upholding the preventive detention. It declared: "Viewed from any angle, I do not find any illegality or impropriety in the impugned detention order." Accordingly, it dismissed the habeas corpus petition.

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It further held: "The impugned order...has been passed by the detaining authority, which is based on a reasonable prognosis of his future behaviour, based on his past conduct and in light of the surrounding circumstances."

On the adequacy of grounds and procedural compliance, the Court noted: "The grounds of detention, in the present case, are not only definite and proximate but free from any ambiguity."

The Court held its limited scope under writ jurisdiction: "The writ Court...cannot examine the sufficiency of material...and cannot substitute its satisfaction with that of the detaining authority."

The detention record was ordered to be returned to the learned Government Advocate.

Advocates Representing the Parties:

For the Petitioners: Mr. Wajid Mohammad Haseeb, Advocate

For the Respondents: Ms. Rekha Wangnoo, Government Advocate

Case Title: Tahir Riyaz Dar v. UT of J&K and Others

Case Number: HCP No. 126/2024

Bench:  Justice Rajesh Sekhri

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